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Department of Environmental Quality v. Gomez

Court of Appeals of Michigan

November 17, 2016

HERNAN F. GOMEZ and BETHANY M. GOMEZ, Defendants-Appellants.

         Ingham Circuit Court LC No. 13-001426-CE

          Before: Riordan, P.J., and Meter and Owens, JJ.

          Per Curiam

         Defendants appeal as of right the trial court's judgment-following a grant of summary disposition in favor of plaintiff on the issue of liability and a bench trial on remedies-ordering defendants to remove 1.2 acres of fill material that they placed in a wetland on their property, to restore the area to its previous condition, and to pay a $10, 000 civil fine. For the reasons stated below, we affirm.


         In 2002, defendants purchased approximately 54 acres of property in Green Oak Township, Michigan, with the intention of constructing a home and an adjoining "working ranch" with horses. After building the house, defendants selected an area of land next to it which they decided to convert into a horse pasture. However, in order to make the land suitable for "pasture seed, " they believed that "top soil" needed to be added. Accordingly, they placed "fill dirt" in the area between May 2005 and December 2010.

         While reviewing aerial photographs in an unrelated matter, Justin Smith, an environmental quality specialist for the Department of Environmental Quality ("DEQ"), happened to notice what "looked like . . . a filled wetland area" on defendants' property. Later, he and Thomas Kolhoff, a district representative for the DEQ and the Water Resources Division ("WRD"), conducted an onsite investigation of defendants' property in fall 2010, during which they sampled the vegetation and the soil, photographed the site, and identified the filled area's boundary. Upon arriving at the property, Smith observed "a cleared area with exposed" light-colored soil, "no vegetation, " and "some remnant of remaining wetlands that were not filled" nearby. He specifically observed "a section of cattails 30 feet wide" and "another small section that was not filled, that was basically . . . shrub swamp, " which "was inundated with approximately six inches of water." Kolhoff performed four or five "soil borings" and attempted to perform more, but he "couldn't get through the fill, " which included either "broken concrete or thick gravel."

         Smith issued a DEQ "violation notice" on December 2, 2010, which informed defendants that an inspection of their property revealed that "fill material had been placed within wetland regulated under the authority of Part 303" of the Natural Resources and Environmental Protection Act ("NREPA"), and that "it appears that this activity was conducted in violation of Part 303" because the filling was performed without a permit. Smith also told defendants that the WRD "determined that a permit would not have been approved for this project, " and that defendants were required bring their property into compliance with Part 303 within 30 days by restoring the site to a wetland. According to defendants, they did not deposit additional fill material on their property once they received the violation notice, but they "continued thereafter to merely plant and nurture pasture grass seed on the land on which fill had already been deposited."

         Defendants hired an environmental consulting firm to assist them in the resolution of the alleged violation. In a February 11, 2011 letter, Dianne Martin, "the Director of Resource Assessment and Management" at the firm, informed the WRD that "[a]pproximately 1.4 acres of wetland on the property were filled over the course of the last several years." However, she explained that defendants intended to use the filled area for "farming and ranching activities" and, therefore, were not required to obtain a permit to fill the wetland under the corresponding exemption provided in Part 303 of the NREPA. Nonetheless, Martin indicated that defendants would be willing to enter into a conservation easement for approximately 18 acres of wetland on their property if plaintiff was amenable to such a resolution.

         In a letter dated February 18, 2011, Smith informed defendants that the WRD had received Martin's letter and that "the WRD vehemently disagree[d]" that a permit was not required for defendants' activities. Accordingly, he informed defendants that "if the site is not restored . . . this violation may be referred for escalated enforcement action." Subsequently, when Kolhoff visited defendants' property once per year in 2011, 2012, and 2013, and Smith visited the site in March 2013, they each observed that restoration efforts had not begun.

         On December 19, 2013, plaintiff initiated an action in the Ingham Circuit Court seeking "injunctive relief to remedy . . . the filling of a wetland without a permit in violation of Part 303 (Wetlands Protection) of the [NREPA]." Plaintiff requested that the court order defendants to restore their property "to the state that existed prior to the unauthorized and unlawful activities" and to pay a civil fine of not more than $10, 000 for each day of the Part 303 violation.

         In February 2014, defendants moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that they were entitled to judgment as a matter of law because no factual development would alter the fact that their filling of the wetland qualified under Part 303's "farming and ranching exemption, " which, in their words, "allows a person to undertake activities that bring a wetland into a previously non-established farming or ranching use" without acquiring a permit. Plaintiff disagreed that the exemption applied. The trial court denied defendants' motion because it determined there were factual issues relevant to whether defendants' activities fulfilled the exemption.

         In September 2014, defendants again moved for summary disposition, arguing that it was proper under MCR 2.116(C)(7) because the DEQ's action was time-barred under the applicable statute of limitations, as an action for the recovery of a penalty must be brought within two years after the claim accrues. Alternatively, defendants argued that even if a six-year limitations period applies, the action still would be barred because plaintiff's claim accrued when defendants first placed fill material in the wetland in 2005, as established by defendant Hernan's affidavit. Plaintiff DEQ disagreed, arguing that under Attorney General v Harkins, 257 Mich.App. 564; 669 N.W.2d 296 (2003), the applicable statute of limitations for equitable actions to enforce Part 303 is six years, and it was undisputed that defendants placed fill material in the wetland in 2008, 2009, and 2010. However, plaintiff conceded that it could not seek enforcement for the portion of the wetland that was filled by defendants between 2005 and 2007. After hearing oral argument, the trial court denied defendants' motion, concluding that, under Harkins, the six-year statute of limitation applied to plaintiff's claims. The court also held "that each plac[ement] of fill materials or dirt in the wetlands created its own accrual date for the six-year statute of limitations, " and that there was no dispute that "this action existed within six years."

         In the meantime, plaintiff filed a cross-motion for summary disposition on liability pursuant to MCR 2.116(C)(10), arguing that there was no genuine issue of material fact that defendants placed fill material in a wetland without a permit and that their activities did not constitute "cultivating" under the farming exemption. The trial court granted plaintiff's motion, noting that defendants admitted that they placed fill material in a wetland and that Huggett v Dep't of Nat Res, 464 Mich. 711; 629 N.W.2d 915 (2001), "clearly states that filling and dredging a wetland are prohibited activities that do not fit within the farming activities[.]" The court also found defendants' argument that they were cultivating the wetland unpersuasive because "in order to get any potential cultivating [they] had to fill and dredge and had to place materials in the site."

         Subsequently, a two-day bench trial was held on the issue of remedies. After hearing testimony from Smith and Kolhoff, both of whom were qualified as expert witnesses, Martin, who also was qualified as an expert witness, and defendant Hernan, the trial court ordered defendants to, inter alia, "[r]estore the approximately 1.2 acres of wetlands on [their property] into which fill material was placed after December 19, 2007 . . . to the condition that existed prior to the unauthorized and unlawful placement of fill material." The restoration activities ordered by the court were as follows:

a. Remove all fill material from the restoration area described above;
b. After the fill material is removed, address compaction of the wetland soils in the restoration area to allow the soils to return to the original grade;
c. Re-establish wetland vegetation in the restoration area by applying a DEQ-approved native wetland plant seed mix and planting native Michigan species of wetland shrubs;
d. Monitor the restoration area for five years after the date of completion; and
e. Implement invasive species monitoring and control measures in the restoration area for five years after the date of completion.

         Before commencing the restoration, defendants were required to prepare and submit a restoration plan to plaintiff no later than June 30, 2016. The trial court also ordered defendants to pay a civil fine of $10, 000.


         Defendants argue that the trial court erroneously granted summary disposition in favor of plaintiff because their use of fill dirt to create a pasture was exempt as a farming or ranching activity from the wetland permitting requirements. We disagree.


         This Court reviews de novo a trial court's grant or denial of summary disposition. Moraccini v Sterling Hts, 296 Mich.App. 387, 391; 822 N.W.2d 799 (2012). "A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint." Cannon Twp v Rockford Pub Sch, 311 Mich.App. 403, 411; 875 N.W.2d 242 (2015). When reviewing such a motion, this Court may only consider, in the light most favorable to the party opposing the motion, the evidence that was before the trial court, which consists of "the 'affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties.' " Calhoun Co v Blue Cross Blue Shield Michigan, 297 Mich.App. 1, 11; 824 N.W.2d 202 (2012), quoting MCR 2.116(G)(5). Under MCR 2.116(C)(10), "[s]ummary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Latham v Barton Malow Co, 480 Mich. 105, 111; 746 N.W.2d 868 (2008). "There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." Allison v AEW Capital Mgt, LLP, 481 Mich. 419, 425; 751 N.W.2d 8 (2008). "This Court is liberal in finding genuine issues of material fact." Jimkoski v Shupe, 282 Mich.App. 1, 5; 763 N.W.2d 1 (2008).

         Questions of statutory interpretation are also reviewed de novo. Stanton v City of Battle Creek, 466 Mich. 611, 614; 647 N.W.2d 508 (2002).

When construing statutes, our primary task is to discern and give effect to the Legislature's intent. We begin by examining the statutory language, which provides the most reliable evidence of that intent. If the statutory language is clear and unambiguous, then we conclude that the Legislature intended the meaning it clearly and unambiguously expressed, and the statute is enforced as written. No further judicial construction is necessary or permitted. [Huggett v Dep't of Nat Res, 464 Mich. 711, 717; 629 N.W.2d 915 (2001).]

         "Only when an ambiguity exists in the language of the statute is it proper for a court to go beyond the statutory text to ascertain legislative intent." Whitman v City of Burton, 493 Mich. 303, 312; 831 N.W.2d 223 (2013). Additionally, "[w]hen construing a statute, a court must read it as a whole." Klooster v City of Charlevoix, 488 Mich. 289, 296; 795 N.W.2d 578 (2011).

         B. ANALYSIS

         The Natural Resources and Environmental Protection Act ("NREPA"), MCL 324.101 et seq., "is a comprehensive statutory scheme containing numerous parts, all intended to protect the environment and natural resources of this state." People v Schumacher, 276 Mich.App. 165, 171; 740 N.W.2d 534 (2007). Part 303 of the act, MCL 324.30301 et seq., "governs activities in wetlands." Huggett, 464 Mich. at 715.[1] "At the federal level, the Clean Water Act (CWA) provides for the regulation and protection of wetlands, while Michigan's wetland protection act . . . serves the same purpose for this state." K & K Constr, Inc v Dep't of Environmental Quality, 267 Mich.App. 523, 530; 705 N.W.2d 365');">705 N.W.2d 365 (2005) (citation omitted).

MCL 324.30304 states:
Except as otherwise provided in this part or by a permit issued by the department, [2] . . . a person shall not do any of the following:
(a) Deposit or permit the placing of fill material in a wetland.
(b) Dredge, remove, or permit the removal of soil or minerals from a wetland.
(c) Construct, operate, or maintain any use or development in a wetland.
(d) Drain surface water from a wetland. [MCL 324.30304(a)-(d).]

         "Fill material" is defined as "soil, rocks, sand, waste of any kind, or any other material that displaces soil or water or reduces water retention potential." MCL 324.30301(1)(d). "However, part 303 also provides that certain activities are not subject to § 30304's prohibitions." Huggett, 464 Mich. at 715. In particular, MCL 324.30305(2) provides that, unless otherwise precluded by other state laws or "the owner's regulation, " certain uses are allowed in a wetland without a permit. Defendants maintain that their filling of the wetland and subsequent growing of pasture grass are activities that fall under the exemption in MCL 324.30305(2)(e). During the time period relevant to this case, [3] MCL 324.30305(2)(e) provided that the following activities could be conducted in a wetland without a permit:

Farming, horticulture, silviculture, lumbering, and ranching activities, including plowing, irrigation, irrigation ditching, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices. Wetland altered under this subdivision shall not be used for a purpose other than a purpose described in this subsection without a permit from the department. [MCL 324.30305(2)(e), as amended by 1995 PA 59 (emphasis added).]

         In particular, defendants contend that their activities constituted "prepar[ation] and cultivat[ion of] the field for farming and ranching use, " so that their filling and cultivation of the wetland qualified under the exemption for farming- and ranching-related activities.

         In Huggett, 464 Mich. at 718-722, the Michigan Supreme Court interpreted the former version of the "farming activities exemption" at issue in this appeal. See id. at 718. Other than the opinion issued by this Court before the Supreme Court's opinion in Huggett, see Huggett v Dep't of Nat Res, 232 Mich.App. 188, 191; 590 N.W.2d 747');">590 N.W.2d 747 (1998), aff'd 464 Mich. 711 (2001), we have found no other authority interpreting the "farming activities exemption." While we recognize the factual distinctions between Huggett and the instant case, we believe that the reasoning utilized by the Huggett Court is directly applicable to the circumstances of this case.

         In Huggett, the plaintiffs sought to build a 200-acre cranberry farm on a 325-acre parcel of land, which included 278 acres of wetland. Id. at 713. In order to build the farm, the plaintiffs proposed "placing fill material in wetland areas, excavating and removing soil from wetland areas, building dikes and culverts; digging irrigation ditches; and constructing a reservoir and pumping station, roads, and an airstrip." Id. The plaintiffs maintained in the trial court and on appeal that their proposed activities qualified under the farming activities exemption and were not, therefore, "subject to the wetland permit requirements[.]" Id. at 713-714. The plaintiffs argued that the list of exempt farming activities under MCL 324.30305(2)(e) was not exhaustive, contending that "[t]he farming activities exemption . . . includes all of the activities necessary for farming." Id. at 718 (quotation marks omitted).

         The Michigan Supreme Court, however, concluded that "[t]hese specific examples of farming activities [under MCL 324.30305(2)(e)] relate to the operation, improvement, expansion, and maintenance of a farm, or to the actual practice of farming." Id. at 719. Accordingly, although activities not specifically listed in the statute may be covered by the farming activities exemption, "[u]nder the canon of ejusdem generis, [4] . . . the activities must be of the kind, class, character, or nature of operating a farm or practicing farming." Id. at 719. Notably, in "constru[ing] both the prohibitions and exemptions in part 303 to make both viable, " Huggett, 464 Mich. at 717, the Court recognized that "some of the activities allowed under § 30305 overlap with the activities prohibited under § 30304, " Huggett, 464 Mich. at 720. The Court cited, as an example, MCL 324.30304's prohibition of draining and MCL 324.30305's allowance of "minor drainage." Huggett, 464 Mich. at 720. "To make both sections viable, " the Court reasoned, "we must read the allowance for minor drainage only to allow drainage that fits within the definition of 'minor drainage, ' or, in other words, only to allow drainage that is inconsequential." Id.

         Ultimately, the Supreme Court found that "[t]he activities [the] plaintiffs seek to exempt . . . are not in the kind, class, character, or nature of operating a farm." Id. More specifically, it later reiterated that the "[p]laintiffs' proposed activities unquestionably amount to more than 'minor drainage' and also entail filling and dredging in a wetland, which are prohibited activities. These activities, then, do not fit within the farming activities exemption to the wetland permit requirements." Id. (emphasis added). Based on this reasoning, we conclude that defendants' acts of filling the wetland in this case were prohibited acts that did not fall under the farming activities exemption. See id.

         However, we recognize that the specific question raised by defendants in this appeal differs, to a certain extent, from the question raised in Huggett. Here, defendants conceptualize the issue as whether the placement of fill material in a wetland in order to grow grass thereon constitutes " 'cultivating' the land, as that term is used in Part 303, " or is at least "of 'the same kind, character or nature' as cultivating, as allowed by Huggett." Stated differently, we understand defendants' claim as arguing, in essence, that their placement of fill material constitutes "cultivating" under MCL 324.30305(2)(e) and is, therefore, a limited exception to the prohibition against filling in MCL 324.30304(a), similar to the way that "minor drainage" under MCL 324.30305(2)(e) is a limited exception to the prohibition against draining surface water from a wetland in MCL 324.30304(2)(d). We disagree that defendants' act of adding fill material to the wetland constitutes "cultivating, " or something similar to cultivation, which is exempted from the permit requirements pursuant to MCL 324.30305(2)(e).

         "Cultivating" is not defined for purposes of Part 303 or elsewhere in the NREPA. See MCL 324.30301. Accordingly, it is appropriate to consult a dictionary to determine its plain and ordinary meaning. Epps v 4 Quarters Restoration LLC, 498 Mich. 518, 529; 872 N.W.2d 412 (2015). Merriam-Webster's Collegiate Dictionary (11th ed) defines "cultivate" as "to prepare or prepare and use for the raising of crops", "to loosen or break up the soil about (growing plaints), " "to foster the growth of [vegetables], " and "to improve by labor, care, or study." Based on these definitions, it appears that the plain and ordinary meaning of "cultivating" involves preparing, improving, or tilling soil already present in a given growing area, and all of these activities are of the "kind, class, character, or nature of operating a farm or practicing farming." See Huggett, 464 Mich. at 719. Accordingly, we conclude that defendants' extensive ...

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